Law & the Courts

Cider and Religious Freedom

(Photo: Country Mill Farms via Facebook)
Can a Catholic couple live their faith and still sell apples at a farmer’s market?

On Friday, the Tennes family of Charlotte, Mich., and their family-run orchard won a temporary reprieve. The city of East Lansing, Mich., had banned them from the city’s farmer’s market because they refuse to host same-sex marriage ceremonies at their farm. In a decision granting the Tenneses’ motion for a preliminary injunction, federal district-court judge Paul Maloney ordered East Lansing to “allow the Plaintiffs to participate in the East Lansing Farmer’s Market for the remainder of the 2017 season.”

Back in June, Stephen Tennes, who operates Country Mill Farms with his wife, Bridget, sued East Lansing after the city refused to let the family sell their produce at the farmer’s market, as they had done for the previous seven years. The Tenneses’ complaint, filed in the Western District Court of Michigan, alleged seven separate federal constitutional claims, but Judge Maloney homed in on two of their legal theories in ordering relief — retaliation for engaging in protected speech and targeting the plaintiffs because of their religious beliefs.

Judge Maloney concluded that the Tenneses had a likelihood of success on the merits of their retaliation claim. As he explained, the government violates the First Amendment when it retaliates against a citizen for engaging in protected speech. Judge Maloney then laid out the history of the dispute between East Lansing and the Tenneses, which began in 2016. In August of that year, a woman posted a message on Facebook urging people not to patronize Country Mill Farms because the Tenneses had refused to host a same-sex ceremony for her at the orchard. Two days later, the Tenneses posted a response on Facebook explaining that based on their Catholic faith, they do not host or participate in same-sex weddings at the family farm.

The city learned of the post almost immediately, and the mayor, Mark Meadows, and other city officials contacted the Tenneses and pressured them to voluntarily vacate their booth at the market. The Tenneses declined the request but, to avoid further controversy, decided to temporarily stop all booking of weddings at their orchard. The Tenneses informed the city of their decision and posted it on Facebook as well.

Mayor Meadows was not satisfied, though. In one email he wrote: “I am not sure whether not hosting any weddings actually addresses the issue which is a public statement that their religion does not permit them to allow same sex couples to be married at their farm.” However, the city had no means to ban the Tenneses from the farmers’ market — at least not in 2016.

After the farmer’s market closed for the season, two things changed. First, the Tenneses announced on Facebook that Country Mill Farms would begin hosting weddings again, but only for marriages between one man and one woman. And second, East Lansing amended the terms of its vendor agreements for the farmer’s market. The new version of the agreement required vendors to agree not to discriminate on the basis of sexual orientation while operating at the farmer’s market “and as a general business practice.” East Lansing also directed the farmer’s market’s planning committee not to invite Country Mills Farms back for the 2017 season. The Tenneses nonetheless submitted a vendor agreement, which the city rejected.

The evidence, Judge Maloney ruled, created an inference that the city specifically targeted the Tenneses because of their religious beliefs.

Judge Maloney concluded that the mayor’s email, the city’s directive to the planning committee, and the amendment to the vendor agreement to take into account the Tenneses’ business practices at their farm some 20 miles outside of East Lansing’s city limits, all indicate that the city sought to punish the Tenneses for speaking out on Facebook about their religious opposition to same-sex marriage, in violation of their First Amendment rights. These same facts, Judge Maloney concluded, demonstrate a likelihood of success on the merits of the Tenneses’ free-exercise claim. Here, Judge Maloney stressed, the evidence created an inference that the city specifically targeted the Tenneses because of their religious beliefs. Accordingly, the court granted the Tenneses’ motion for a preliminary injunction and ordered the city to allow the Tenneses to participate in the farmer’s market for the remainder of the 2017 season.

The court’s order provides the Tenneses with much-needed relief. But as Steve Tennes told the Daily Signal in a telephone interview last week: “Since June 1, we’ve already missed three and a half months of being able to attend East Lansing Farmer’s Market, where we’ve served everyone for the last seven years. Now we only have about six weeks left of the market to be able to sell, and the . . . East Lansing Farmer’s Market was the largest farmer’s market [where] our family sold organic apples and cider.”

Further, the Tenneses’ relief may prove fleeting, as East Lansing now has 30 days to appeal the lower court’s decision to the Sixth Circuit Court of Appeals. And even if the federal appellate court upholds Judge Maloney’s ruling, East Lansing could still prevail following a full trial.

Moreover, those celebrating the Tenneses’ current victory should keep in mind that it was a win not for religious liberty but against retaliation and anti-Catholic bigotry. Judge Maloney granted the Tenneses’ motion for a preliminary injunction because East Lansing appeared to have targeted the Tenneses for their speech and religious views. Left unanswered in the court’s order is the question of whether the Tenneses’ religious liberty could survive a neutral non-retaliatory law that requires business owners to participate in same-sex weddings, even when doing so violates their deeply held beliefs. And for that answer, we will need to wait a little longer until the Supreme Court decides Masterpiece Cake Shop v. Colorado Civil Rights Commission — likely the most significant religious liberty case in our lifetime . . . maybe even our country’s lifetime.

READ MORE:

Religious Coercion Persists, from Russia to America

The Continuing Threat to Religious Liberty

Religious Liberty vs. Anti-Discrimination: Toward a ‘Political Settlement’

Margot Cleveland is a lawyer, CPA, stay-at-home mom, and former full-time faculty member and current adjunct professor at the college of business at the University of Notre Dame. She can be reached at mobrien@nd.edu.

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